Ismael Palma-Balbuena v. Jefferson Sessions , 695 F. App'x 230 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISMAEL PALMA-BALBUENA, No. 14-70887
Petitioner, Agency No. A099-579-380
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Ismael Palma-Balbuena, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Our
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction is governed by 8 U.S.C. § 1252. We review questions of law de novo,
Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that
deference is owed to the BIA’s determination of the governing statutes and
regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review
for substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d
1066, 1070 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
We do not consider the supplemental documents and related factual
assertions referenced by Palma-Balbuena in his opening and reply briefs. See
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (the court’s review is
limited to the administrative record).
The record does not compel the conclusion that Palma-Balbuena established
either extraordinary circumstances or changed circumstances materially affecting
his eligibility for asylum to excuse his untimely application. See 8 C.F.R.
§ 1208.4(a)(4), (5); Fakhry v. Mukasey, 524 F.3d 1057, 1063 (9th Cir. 2008)
(changed circumstances must materially affect applicant’s eligibility for asylum
and eligibility “is established by demonstrating ‘persecution or a well-founded fear
of persecution on account of [a protected ground]’”) (internal citation omitted).
We reject his contentions that the agency did not consider evidence or applied an
incorrect legal standard. Thus, we deny the petition for review as to asylum.
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Substantial evidence supports the agency’s conclusion that the 2005
altercation in a store and Palma-Balbuena’s related fear of future harm were not on
account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010); Molina-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir. 2001) (personal
dispute not grounds for relief where it is unconnected to a protected ground).
Substantial evidence also supports the agency’s finding that Palma-Balbuena did
not establish it is more likely than not he would be harmed as a member of his
family, see INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (applicant must
provide some evidence of motive, direct or circumstantial), or based on his status
as a person returning from the United States, see Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1228-29 (9th Cir. 2016); see also Zetino, 622 F.3d at 1016. We reject
his contentions that the agency erred in analyzing his claim. Further, we lack
jurisdiction to consider his contentions regarding Mexican transport operators
because Palma-Balbuena did not raise them to the BIA. See Barron v. Ashcroft,
358 F.3d 674, 677-78 (9th Cir. 2004). Thus, his withholding of removal claim
fails.
Finally, substantial evidence supports the agency’s denial of Palma-
Balbuena’s CAT claim because he did not establish it is more likely than not he
would be tortured if returned to Mexico. See Silaya, 524 F.3d at 1073. We reject
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his contention that the agency applied an incorrect legal standard.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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